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Podcast: What’s wrong with Congress’ tech policy conversation?

Vergecast interview with TechFreedom’s Berin Szóka

Illustration by Alex Castro / The Verge

This week on the Vergecast interview series, The Verge editor-in-chief Nilay Patel sits down with Berin Szóka, the president of TechFreedom. TechFreedom is a tech policy think tank based in Washington, DC that “digs deep into the hard policy and legal questions raised by technological change.”

Berin and Nilay have differed on a few issues regarding tech policy, like net neutrality, but what they do agree on is the state of the tech policy conversation — it’s bad. Szóka says Republicans he has previously worked with are now getting important topics like Section 230 of the Communications Decency Act wrong, and bad-faith politicians are misinterpreting it to try to score points and pass policy in their favor.

Hear Berin talk about what’s happening now with legislation like Sen. Josh Hawley’s platform moderation bills, why it’s weird for conservatives to want to directly regulate speech on the internet, and how this might play out in the future. Below is a lightly edited excerpt of the conversation.

Nilay Patel: Let’s talk about Josh Hawley’s Ending Support for Internet Censorship Act. This is an act that would reform Section 230 — which I subject Vergecast listeners to endless conversations about. By now, Vergecast listeners should know there’s no such thing as a platform publisher dichotomy. It’s all fake, but give me your view of 230 and what Hawley’s bill would do.

Berin Szóka: So you have to understand that he starts this conversation with this false claim that, he says, “tech companies get a sweetheart deal that no other industry enjoys, complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship.” So he’s picked this talking point up from Ted Cruz and that started about two years ago. The first congressional hearing on this topic was April of last year. I was invited to testify by the Republican chairman, who didn’t seem to think I was a Google shill, about Section 230. And that was the hearing — you may remember this and your listeners may remember this — where Diamond and Silk were held up as the poster children of anti-conservative bias. These are two black women who support President Trump and who allege that Facebook had censored them. I think what happened was really more of a confusion about, let’s say a customer service fail, but that entire hearing consisted of Republicans repeating this talking point that now Josh Hawley has adopted — that somehow Section 230 treats internet companies in a special way that no one else can can enjoy, it gives them some special subsidy, and this is just not true.

Let’s put it this way, there is a difference between traditional media and these tech companies, and it is true that the law treats them somewhat differently. But for a very important reason. So if you publish letters to the editor, you as a traditional publisher have to screen those letters and you are responsible for what people say, just as you would be responsible for the content that your own staff writes. Congress understood in 1996 that if you applied that principle to the internet, it would be impossible to host user-generated content at scale because there is no way to screen content at the level, even that it existed in the 1990s — even online bulletin boards or comment sections on websites, to say nothing of huge social networks. It would be impossible to scale up to that level. And so that’s what Section 230 does. It says that you’re not liable for screening that content, and furthermore, that you do not make yourself more legally liable when you take measures to moderate content on your site. Congress understood that if you made people liable for being good Samaritans that you would get no content moderation. And they specifically wanted to encourage websites to A) host user-generated content, like comments and B) to take measures to moderate it.

So the entire purpose of 230 was that websites were not supposed to be neutral. They were supposed to exercise editorial discretion. And what Ted Cruz is doing here, he’s trying to make it sound like he’s not arguing for government regulation. So that’s why he’s fixated originally on 230, because he thought that he could come up with a clever way to say, “Oh, well this isn’t regulation, this is a special favor that the government is doing you.” And there’s a quid pro quo here. You’re supposed to be politically neutral and the only leg that he has to stand on in making that claim is a very weak leg.

But if you look at Section 230 — and I would invite your listeners to do this, everyone should read it, it’s not a long statute. He focuses on one finding clause in that law where he says that “the internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” And he blows that up into “You see, it’s right there in the statute. Congress expected you to be politically neutral and you have not lived up to that bargain.” That’s such horse shit. The entire purpose of the statute was to encourage websites to exercise their discretion and to not have the government second guess what they do, as the statute says in a purpose statement, to keep the internet “unfettered” by government regulation.

That’s the kind of statutory interpretation that the Federalist Society is supposed to hate. The idea that you pick out one sentence in a finding statement and you blow it up into essentially turning the statute on its head. That’s not something that any Republican would ever have been okay with until this “brave new world” where, you know, Trump has demonstrated to people that they can say anything they want and the substance doesn’t matter. So just go ahead, make whatever bullshit claims you want.

And what’s funny about that is — we endlessly talk about competition on this show — that was designed to encourage competition. So you might have an extremely left-wing website that moderates according to its own rules, and you might have an extremely right-wing website the moderates according to its rules. And the internet as a whole would net it neutral, but it certainly was not — at least from anyone I’ve talked to, including Ron Wyden, who has been interviewed on The Verge who co-wrote the thing — anyone who thought the goal of the sort of neutral public forum piece would apply to an individual website... that was never the goal, the goal was the internet as a whole.

Yeah, it’s complete bullshit. And you know Ron Wyden was the original co-sponsor, but I just want to correct one little factual detail here. Because when Breitbart talks about this bill, they talk about this as Ron Wyden’s bill from 1996, because of course they want to make this sound like some left-wing, cosmopolitan, coastal, elite Democrat wrote the bill. This bill was written by Chris Cox, the Republican, on a plane after the [Stratton Oakmont v. Progidy Services] decision. He wrote the bill. He figured this out on his own as a lawyer, and then he got Ron Wyden on board as a co-sponsor. But this is a Republican bill that achieved broad bipartisan support, that is now being attacked by Republicans who should know better. And on your point, you put that very well when you said that, you know, no one would have thought that this was a mandate for ensuring neutrality in any particular website.

I just want to just give you one other rhetorical framing that I think is important for understanding what a flip-flop this is from Republicans, which is... I’ve compared this to the fairness doctrine. We can talk about what that was. But high level from 1949 to 1987, the Federal Communications Commission required a sort of fairness in how broadcasters covered the news. That had the effect of enforcing a very bland neutrality in radio and television, one that really favored well-established, orthodox, left-of-center views and conservatives hated that. So President Reagan, his FCC studied this issue, they recommended repeal, they repealed it. Democrats in Congress tried to restore the fairness doctrine and President Reagan vetoed that bill. And here’s what he said, because he really put this very well. He summarized what was the Republican view on keeping the government out of media all the way through 2016. This idea kept occurring in Republican Party platforms through the 2016 election. And what he said here, I think, is exactly what I believe and what free market people are supposed to believe.

He said, “We must not ignore the obvious intent of the First Amendment, which is to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outfit.” It’s exactly the point that you were just making. So diversity overall, not getting involved in what any particular outlet does. And President Reagan went on to say, “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.”

Well, Josh Hawley and Ted Cruz and President Trump and the rest of the Republican Party that is engaged on this issue have just completely forgotten that lesson and have turned that on its head. Because they use this rhetoric to talk about Section 230 as the particular legal vehicle for their ideas, but they also claim that somehow the First Amendment protects Marsha Blackburn’s right to spread bullshit on Twitter. So they have now effectively adopted what we call “media access theory”: the idea that was developed in 1960s by the far left, that the First Amendment is not a shield against government, but a sword by which politicians get to decide whether media is treating them fairly and then medal accordingly. So that’s the fucked up, twisted, upside-down world that we lived in.

So this leads right into the Hawley bill, which you have called a “fairness doctrine for the internet” to highlight the sort of absurdity of conservatives for years fighting against the fairness doctrine, getting rid of it. And now Hawley is proposing the Federal Trade Commission will, every so often, review Twitter’s moderation policies, Facebook’s moderation policies, and say, “You’re fair enough.” That seems like something I would say, but it seems wild for a conservative to say, “The FTC is going to regulate moderation policy in this way.”

Yeah, so now the hook here is — per the discussion we were just having about 230 —what Hawley would do is say that “you only enjoy your special subsidy, your special immunity from liability for third-party content if you’re politically neutral,” and that certification has to be reissued by the Federal Trade Commission every two years. And critically, you need four out of five commissioners to vote that you have been politically neutral, which as a practical matter means that even in the minority — even under a Democratic administration where there would be only two out of five Republican commissioners — that those two, if they voted against a company, they could deny that company what is effectively the reissuance of a license. That’s really what we’re talking about here. It’s a licensing regime because if you don’t get that, you’re effectively out of business. You’re not going to be able to host user-generated content because all of a sudden, anybody can sue you for anything that your users say.

And I just want to point out the fundamental disconnect here. These two things have nothing to do with each other. Whether you should be able to sue me — the host of user-generated content — for something that one of the users of my platform has said that defames you, it has nothing to do with whether my platform is politically neutral. So that’s the first and most dishonest thing about this whole idea. But the only reason that they’re doing that is because Ted Cruz zeroed in on that idea that there was this quid pro quo here, that this 230 required neutrality. Once you proceed from there, you get this whole crazy idea that it inevitably leads you to something like the Hawley bill, which in practice, as I say, is a licensing regime, but a licensing regime that is based on the inherently arbitrary assessment of whether you were fair enough.

I’ve called this the fairness doctrine for the internet, but it’s actually far, far worse than the original fairness doctrine. So some of your listeners may be those crazy left-wing people that I referred to earlier, who actually think that we should bring back the fairness doctrine for radio and broadcasting. But even if you think that, this is so much worse than that. The fairness doctrine was problematic. Let’s just say that its intentions, I think, were pretty good. I would prefer a much healthier, fairer media environment and that’s what the fairness doctrine aimed for, it just had these unintended consequences of putting the government in the decision-making role of whether you were adequately deciding which were the major or significant opinions that required a response, and then having the unintended consequence of controversial viewpoints being screened out in favor of what the FCC, at the time, called “the dreary blandness of more acceptable opinion.”

Those were unintended consequences. But this idea, the Josh Hawley idea, this would be far more dramatic. This would be the federal government, two federal trade commissioners having the ability to say, “Yeah, you know what? I just think you were just too mean. I just didn’t like what you did here or there.” And then being able to say, “And so, you know, for next two years anybody can sue you for anything that any of your users say.” I mean, that’s crazy. When you start looking at the specific examples of what people alleged to be unfair treatment of conservatives, you start to understand why this is inherently arbitrary. There is no way to draw a line here.

This is not like net neutrality, where you could say, “The broadband providers hold themselves out as being politically neutral. They say they’re not going to block content and they did.” Well you know, that’s where you and I agree on net neutrality. But that’s holding companies to their promises and the promises are really pretty clear: you either did or didn’t. Whereas here, what we’re talking about is websites when they’re brought up to the Hill, they may say, “We don’t discriminate politically,” but they also run a business where they also have terms of service and they tell everyone upfront, “We enforce these terms of service.” And that requires them to exercise editorial discretion to decide, did someone go too far, was that comment inappropriate, where should they draw the line on hate speech?

There is no way to draw clear, bright line rules for any of these things. It is inherently subjective and you may be uncomfortable. I think a lot of people are somewhat uncomfortable with those decisions being made by private companies. But it’s a billion times worse for the federal government to get involved in second guessing that and second guessing it specifically along partisan lines where they say, “You know what? I just think that you were not fair to pro-life speakers. You did X, Y, and Z and I’m going to withhold your license effectively.” That’s what we’re talking about here.